Third District Court of Appeal
State of Florida
Opinion filed April 18, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-300
Lower Tribunal No. 16-9731
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The Waves of Hialeah, Inc.,
Appellant,
vs.
Julia Machado, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Reemberto
Diaz, Judge.
Luks, Santaniello, Petrillo & Jones, and Edgardo Ferreyra, Jr., Daniel J.
Santaniello (Boca Raton), Heather M. Calhoon, and Daniel S. Weinger, for
appellant.
The Haggard Law Firm, P.A., and James C. Blecke, for appellees.
Before EMAS, FERNANDEZ and LUCK, JJ.
PER CURIAM.
ON MOTION FOR REVIEW
The Waves of Hialeah, Inc. (“The Waves”), the defendant and judgment
debtor below, seeks review of the trial court’s order denying its “Motion to Set
Good and Sufficient Bond and Other Conditions.” We generally review the trial
court’s order on a motion for supersedeas bond under an abuse of discretion
standard. City of Lauderdale Lakes v. Corn,
415 So. 2d 1270 (Fla. 1982).
However, to the extent that the trial court’s determination rests upon the
construction of a rule or statute, our review is de novo. See, e.g., R.J. Reynolds
Tobacco Co. v. Sikes,
191 So. 3d 491 (Fla. 1st DCA 2016). For the reasons that
follow, we deny the motion for review.
FACTS AND BACKGROUND1
Appellees Julia Machado and Rafael Guevara, as co-personal representatives
of the Estate of Yaimi Guevara Machado, filed suit against The Waves. The suit
alleged that Yaimi was murdered while on the premises of The Waves, and that
Yaimi’s death was the result of negligent or inadequate security provided by The
Waves.
Following a trial, the jury awarded damages in the total amount of twelve
million dollars. Final judgment was entered on December 4, 2017, and the trial
court denied The Waves’ post-trial motions.
1 The background facts are taken from appellant’s motion for review and are
accepted as true for purposes of this court’s review.
2
Thereafter, The Waves filed a Motion to Set Good and Sufficient Bond and
Other Conditions. In its motion, The Waves recognized that, pursuant to Florida
Rule of Appellate Procedure 9.310(b)(1), where the judgment is “solely for the
payment of money, a party may obtain an automatic stay of execution pending
review, without the necessity of a motion or order, by posting a good and sufficient
bond equal to the principal amount of the judgment plus twice the statutory rate of
interest on the total amount on which the party has an obligation to pay interest.”
Notwithstanding this automatic stay provision for money judgments, The
Waves asked the trial court to reduce the amount of the bond necessary for a stay
pending appeal, suggesting that the posting of one million dollars, together with
the setting of non-monetary conditions,2 would constitute a “good and sufficient
bond.”
At the hearing on the motion, counsel for The Waves argued that the posting
of a twelve million dollar bond (plus two years’ interest at the statutory rate)
“[w]ill most likely bankrupt my client.” Also at the hearing, The Waves conceded
that this court has previously construed rule 9.310(b)(1) as the only method by
which an appellant may obtain a stay on a money judgment. Rule 9.310 provides
in relevant part:
2 The Waves suggested, as an additional condition, that it would execute an
agreement not to dissipate any property or assets during the pendency of the
appeal.
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(a) Application. Except as provided by general law and in
subdivision (b) of this rule, a party seeking to stay a final or non-final
order pending review shall file a motion in the lower tribunal, which
shall have continuing jurisdiction, in its discretion, to grant, modify,
or deny such relief. A stay pending review may be conditioned on the
posting of a good and sufficient bond, other conditions, or both.
(b) Exceptions.
(1) Money Judgments. If the order is a judgment solely for the
payment of money, a party may obtain an automatic stay of execution
pending review, without the necessity of a motion or order, by posting
a good and sufficient bond equal to the principal amount of the
judgment plus twice the statutory rate of interest on judgments on the
total amount on which the party has an obligation to pay interest.
Multiple parties having common liability may file a single bond
satisfying the above criteria.
The trial court denied The Waves’ motion to reduce the amount of the
supersedeas bond, and this motion for review follows.
ANALYSIS
We acknowledge a conflict exists between this court and two of our sister
courts on the issue of whether a trial court, in the exercise of its discretion, may
reduce the amount or otherwise alter the conditions of a supersedeas bond.3 We
3 This court has held that if a judgment debtor seeks to stay execution of a money
judgment pending appeal, “he may obtain a stay ‘only by the posting of the bond in
the amount set forth in Rule 9.310(b).’” Mellon United Nat’l Bank v. Cochran,
776
So. 2d 964 (Fla. 3d DCA 2000) (quoting Campbell v. Jones,
648 So. 2d 208, 209
(Fla. 3d DCA 1994)) and Palm Beach Heights Dev. & Sales Corp. v. Decillis,
385
So. 2d 1170, 1171 (Fla. 3d DCA 1980)) (emphasis added). Compare Silver Beach
Towers Prop. Owners Ass’n, Inc. v. Silver Beach Investments of Destin, LLC,
231
So. 3d 494, 495 (Fla. 1st DCA 2017) (review denied,
223 So. 3d 997 (Fla. 2017)),
wherein the First District held that “rule 9.310(b)(1) is not the only avenue for
obtaining a stay of a money judgment. A trial court has the authority, upon the
motion of a party pursuant to rule 9.310(a), to enter a stay upon conditions other
4
need not belabor this point, however, because in 2006, the Legislature enacted
section 45.045, Florida Statutes (2006), which supplements rule 9.310 and
authorizes the trial court, under certain circumstances and upon a proper showing,
to reduce the amount, or otherwise alter the conditions, of a supersedeas bond.
Section 45.045 provides:
(1) Except for certified class actions subject to s. 768.733, in any civil
action brought under any legal theory, the amount of a supersedeas
bond necessary to obtain an automatic stay of execution of a judgment
granting any type of relief during the entire course of all appeals or
discretionary reviews, may not exceed $50 million for each appellant,
regardless of the amount of the judgment appealed. The $50 million
amount shall be adjusted annually to reflect changes in the Consumer
Price Index compiled by the United States Department of Labor.
(2) In any civil action brought under any legal theory, a party seeking
a stay of execution of a judgment pending review of any amount may
move the court to reduce the amount of a supersedeas bond required
to obtain such a stay. The court, in the interest of justice and for good
cause shown, may reduce the supersedeas bond or may set other
than a bond, so long as the conditions are adequate to ensure payment;” and Platt
v. Russek,
921 So. 2d 5, 7-8 (Fla. 2d DCA 2004):
Although a bond in the amount required for an automatic stay under
rule 9.310(b)(1) may, as a general rule, be the appropriate condition
for a stay of execution, we disagree with the Third District that it is
the only condition. Rule 9.130(a) governs the procedure by which a
party may move a trial court for a stay of a final or nonfinal order
pending appellate review. The trial court, in its discretion, may grant
or deny a motion for stay, and a stay “may be conditioned on the
posting of a good and sufficient bond, other conditions, or both.” Rule
9.310(b)(1) states that if the order sought to be stayed is solely a
money judgment, a party need not file a motion pursuant to rule
9.310(a) to obtain an order staying execution but may obtain an
automatic stay of execution upon posting the requisite bond.
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conditions for the stay with or without a bond. The court may not
reduce the supersedeas bond if the appellant has an insurance or
indemnification policy applicable to the case. This subsection does
not apply to certified class actions subject to s. 768.733.
(3) If an appellant has posted a supersedeas bond for an amount less
than that which would be required for an automatic stay pursuant to
Rule 9.310(b)(1), Florida Rules of Appellate Procedure, the appellee
may engage in discovery for the limited purpose of determining
whether the appellant has dissipated or diverted assets outside the
course of its ordinary business or is in the process of doing so.
(4) If the trial or appellate court determines that an appellant has
dissipated or diverted assets outside the course of its ordinary business
or is in the process of doing so, the court may enter orders necessary
to protect the appellee, require the appellant to post a supersedeas
bond in an amount up to, but not more than, the amount that would be
required for an automatic stay pursuant to Rule 9.310(b)(1), Florida
Rules of Appellate Procedure, and impose other remedies and
sanctions as the court deems appropriate.
Accordingly, we need not consider in this case whether our decisions in
Cochran, Campbell and Decillis are in conflict with Silver Beach and Platt, in light
of the discretion now conferred upon the trial court by the Legislature’s 2006
enactment of section 45.045(2),4 which authorizes a trial court to, under
4 Neither party contends that this statute, or the particular provision at issue,
unconstitutionally encroaches upon the Florida Supreme Court’s rule-making
authority. See Art. V, § 2(a), Fla. Const. (providing: “The supreme court shall
adopt rules for the practice and procedure in all courts . . . .”); Abdool v. Bondi,
141 So. 3d 529, 538 (Fla. 2014) (holding that “the Florida Constitution grants this
Court the exclusive authority to adopt rules of judicial practice and procedure for
actions filed in this State”). We need not and therefore do not reach that issue
here, but note that subsection (1) of this statute has previously been upheld against
such a challenge. See, e.g., BDO Seidman, LLP v. Banco Espirito Santo Int’l,
Ltd.,
998 So. 2d 1 (Fla. 3d DCA 2008) (upholding the constitutionality of the
statutory $50 million cap on a supersedeas bond notwithstanding rule 9.310(b)(1)’s
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appropriate circumstances and showing, and with adequate conditions, reduce a
supersedeas bond to some amount less than “the principal amount of the judgment
plus twice the statutory interest” as otherwise required for an automatic stay under
rule 9.310(b)(1).
Importantly for our purposes, however, that same statute also creates an
exception to the exercise of this discretion, expressly providing that the trial court
“may not reduce the supersedeas bond if the appellant has an insurance or
indemnification policy applicable to the case.” § 45.045(2), Fla. Stat. The Waves
has acknowledged that it had an insurance policy, applicable to this case, in the
amount of one million dollars. Therefore, the trial court could not, and properly
did not, reduce the amount of the supersedeas bond.
The motion for review is therefore denied.
requirement that a good and sufficient bond for a money judgment must be “equal
to the principal amount of the judgment plus twice the statutory rate of interest on
judgments”). See also Fla. R. App. P. 9.310(a) (“Except as provided by general
law and in subdivision (b) of this rule, a party seeking to stay a final or non-
final order pending review shall file a motion in the lower tribunal, which shall
have continuing jurisdiction, in its discretion, to grant, modify, or deny such
relief.”) (Emphasis added.)
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